Copyrights, Patents & Intellectual Property Rights: An Overview

I am not a lawyer, so do not treat this as legal advice. However, I have learnt about copyrights, patents and other intellectual property issues the hard way, and hence feel qualified to give you practical ‘big picture’ advice (which might sometimes go against what a lawyer might tell you legally).

By way of background in this area, I have 9 issued patents from 3 different companies (1 startup, 2 large MNCs), I’ve been on the patent committee of a large company, and I’ve been forced to learn about copyrights by being involved in transactions where they played a major role. Through this series of articles I wish to give quick ‘n dirty advice, just enough of it so that you know what major mistakes to avoid, and when to hire a good lawyer.

First, you need to understand the difference between copyrights and patents, and their related cousins: trade secrets and trademarks. Here is an over-simplified overview (later articles will give more details):

Patents:

A patent gives an inventor of an innovative machine/idea control over who is allowed to implement, make, use, sell, or distribute products based on that invention. If I invent a machine and patent it, and if you look at my machine and create a different machine, which conceptually uses the same idea/mechanism, then you are violating my patent – you can’t do that without my permission. Patent protection only exists if you file the patent with the patent office, and if the patent is accepted.

Copyrights:

A copyright essentially ensures that any creative work cannot be copied without the permission of the author/creator. This allows the author to charge others for copying his work, or modifying it, or building on top of it. For example, everyone who sells any Calvin & Hobbes stickers is violating the copyright of creator Bill Watterson. For a creative work to be protected by copyright law, it needs to be something concrete – i.e. put into some physical format. (The technical term is ‘fixed in a tangible medium.’) It can be the source code of a software program, or the binary executable file, or a piece of music, or a movie, or the text in a book, or a photograph, or a painting, or a speech. It cannot be just an idea in your head.

Let me repeat: concepts/ideas/algorithms cannot be copyrighted. If you invented a brilliant algorithm, and wrote a program about it, your actual program code is copyrighted but the algorithm is not. I can look at your program and rewrite the algorithm in my own style, and that would be legal. (If you had patented the algorithm, then I would be violating your patent, not your copyright.) Anything you write, say, record, paint, etc. is automatically copyrighted as soon as you create it. It is not necessary to register it with any authority. Notice how this is different from patents.

Trade Secrets:

A trade secret is some formula, design, process, or other information that is important for your business/product, and which is kept a secret from others. For example, the Coca-Cola formula. If you take reasonable precautions in trying to keep your secret a secret, then the law prevents other people from using this information if they were to obtain it somehow. Specifically, if you have a secret formula for making bakarwadi, and I obtain the recipe by bribing your cook, you can sue me in court if I try to use this recipe.

Note that a trade secret is almost the exact opposite of a patent. To get trade secret protection, all you need to do is take reasonable measures to ensure that your secret remains a secret. No ‘registration’ is needed, or possible in this case.

Trademarks:

Short phrases, single words or symbols can neither be copyrighted nor patented. But if you’re using something like that to market and sell some product, then trademark law prevents anybody else from selling a similar product (or products in a similar domain) using the same word/phrase/sign.

Nobody other than the Times of India group can use the phrase ‘News You Can Use’ for selling newspapers. But nothing prevents you from starting a restaurant called ‘News You Can Use’ (as long as you don’t sell any media products/services there). This is different from copyright laws, where you cannot copy a copyright work, irrespective of how you plan on using it. You get trademark protection automatically if you’ve been using that same trademark to sell/market some service/product for a long enough time without anybody else claiming it. A registration of the trademark is not necessary, but is recommended to remove ambiguity.

Just to clarify these concepts, let us take some examples.

Consider any article that Arun writes on trak.in. This article is protected under copyright law, and the copyright is owned by Arun. (Who owns the copyright to this article, written by me, but for trak.in, is an advanced topic to be covered in a future article.)

The word/phrase ‘trak.in’ belongs to Arun, and he can sue in court anyone else who tries to use the words ‘trak.in’ to sell any Indian business articles/information/services. Note: This is inspite of the fact that Arun has not registered a trademark for trak.in. It would have been easier to prosecute if the trademark was registered, but trak.in already has a well known reputation, and that is enough to give it legal protection.

If Arun invents an innovative way to monetize text that appears on this website (hmmm… why does that sound familiar) then that algorithm would be patentable. But, there is no protection until he actually files a patent.

If Arun has invented some super secret SEO trick which ensures that trak.in always stays at the top of Google search results for ‘Indian business blog’, then that is a trade secret, and enjoys legal protection from spies and cheats, unless Arun blurts out the secret one evening after a few too many beers at Doolally.

Arun’s comment: Navin will be writing series of 4-5 articles that will cover Copyrights & patents in further details. Here are some of the topics that you can look forward to in coming days:Understanding Patents furtherUnderstanding Copyrights furtherUnderstanding Open Source Software LicensesCopyright issues for bloggers, website owners and other content creators

"Copyrights, Patents & Intellectual Property Rights: An Overview", 5 out of 5 based on 1 ratings.

Navin Kabra is a Pune-based software engineer and blogger. He spends half his time on his own healthcare startup, and the other half of his time consulting. His remaining time he spends on PuneTech.com, the blog about everything there is to know about technology in Pune.

@Jitendra, I agree that there have not been too many cases in India related to patent violation – but small companies getting into legal trouble for copyright violations is not unheard of. I’ve heard of companies having to shutdown because of copyright violation (for example, for copying a website, or having many pirated copies of licensed software); I know of cases where directors of the companies had to spend some time in jail.

Good article. However, I am a person who does not care about copyrights or patents. Unless you have a multimillion dollars is that nobody cares about patents or copyrights, in particular in India.You tell me how many cases had been there in India for patent violation.

Everyone do need to know the simple of law for patent , trademarks and copyright. Every countries have different law for those. Some country do approve some country do not approve for certain law. Like China, they have no copyright rules. It maybe a good thing and maybe a bad thing. Bad is , pirated products can easy found there. Goods is, that why their market grow so fast in a challenging market.

nice article. however, i am one who does not worry about copyrights or patents. unless you are a multi-million dollar company no one gives a damn about patents or copyrights, especially in india.
you tell me how many cases have been there in india on patent infringement. having knowledge is good, but its of no practical use.

@Nelie, I largely agree with you when it comes to patents, and I largely agree when it comes to copyrights of your own stuff. But not so much when it comes to copyrights of others. See part #2 of my answer to Ruchika’s question for details.

What are the implications for Indian Software companies – are these universal definitions or do they differ (legally) in Indian context? Look forward to more insights on Indian aspect of Patents, copyrights and trademarks – ‘NDA’ in particular.

@Shaloo, there are minor differences from country to country, but at the level of oversimplification at which this article is written, these concepts are more or less universal.
Also, I am not planning on covering NDAs because I don’t really find them particularly interesting, and haven’t heard of any tricky, interesting cases involving them that would be of interest to a common (i.e. non-legal) person.

@Ankesh, In theory, algorithms are not patentable, but in practice they are.
Technically, you are right. Algorithms are not really patentable, and only machines are patentable. However, it is always possible to describe an algorithm in terms of machines. Pretty much all software patents are algorithm patents, and the software industry files so many patents, that nobody even seriously considers that algorithms are not patentable. (There are people in the US who are trying to get software patents legally banned, but they’re never really going to succeed.)

You wrote:
“(If you had patented the algorithm, then I would be violating your patent, not your copyright.)”
Are algorithms patentable? As far as I know – you can’t patent algorithms.
In India, section 3(k) of the Patent Act reads:
(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme per se or algorithms.
In USA, as far as I know – algorithms are not patentable either. But people have found loop holes – and they can repackage algorithms as systems or methods – and can then patent that (http://www.paulgraham.com/softwarepatents.html). (But use the word algorithm in your patent application and it’ll get rejected…)

Great article. Looking forward to the other ones too.. A couple of questions that maybe you can address in them
1. So, for copyright, the source code gets copyrighted and not the concept/idea. However the source code is ever changing and features may keep getting added/dropped. How does the copyright address this?
2. Wrt India and the practicality and cost of taking legal action, how far does copyright/patent/trademark go for a startup?

1. Everytime I hit “SAVE” in my program editor, I’m creating a new version of the software program, and it is automatically copyrighted to me (or my employer). Each of these versions is an independently copyrighted work. When you pay me for a license for my program, you are paying for the right to use one specific version. I might offer you free bug fixes, and upgrades, but that is just me being very generous. Copyright law does not automatically give you the right to the future versions of the software just because you bought one particular version. I hope that answers your first question.

2. In my opinion, small companies, especially in India, should follow these rules: (a) In most cases, ignore patent issues. Unless you’ve invented something really, truly inventive. (But the chances of that having happened are very low.) (b) Ignore it if someone else is violating your copyrights. Your money and effort are much better spent in developing new products and finding new customers. (c) Be very careful of not violating someone else’s copyrights – especially larger companies. Companies like Microsoft, Symantec, MATLAB spend lots of money in finding and suing small companies (yes, in India!) that use their software illegally. I’ve heard of cases of large settlements, I’ve heard of cases of companies going out of business because they could afford the settlement, and I’ve heard of people going to jail. Yes, in India. So be careful.

1. Yes, the future posts will have more “startup”/IT related examples. Also, copyrights quiz mentioned at the beginning of the article has a lot of such examples.

2. Yes, public display of something with sufficient proof for time and date would be a good idea in two cases: (a) In case of creative works, it will help to establish that you are the copyright holder (i.e. to show that you had written it before someone else did it), and (b) in case of ideas, it will help to ensure that no one else can patent it and sue you. (More details of this second case in a future post.)

Great post and written in a very easy to understand manner. I know it can get confusing to us lay people about some terminology, but that is expected.

Keep these posts coming. You have already used the example of software code in this post. In fact, I think if you can use some more examples about start ups, in particular, IT start ups, I think this may be immediately beneficial to the trak.in community (don’t know why I think there are many IT guys here). Of course, not IT examples will also be beneficial to the wider community and also help in understanding the concepts better.

One take away for me from this post-“Anything you write, say, record, paint, etc. is automatically copyrighted as soon as you create it” – that is very interesting. Should I publicly display something to prove that I was the first to do so with sufficient proof for time and date for doing so?